Fernando Castillo v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 22, 2021
• Docket: 20-71083
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FERNANDO CASTILLO, No. 20-71083

Petitioner, Agency No. A074-423-399

v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted January 20, 2021**

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.

Fernando Castillo, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his application for asylum, withholding of

removal, relief under the Convention Against Torture (“CAT”), and his application

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We

review for abuse of discretion the agency’s particularly serious crime

determination. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir.

2015). We review for substantial evidence the agency’s factual findings. Zehatye

v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We review de novo

questions of law. Gomez-Lopez v. Ashcroft, 393 F.3d 882, 885 (9th Cir. 2005).

We deny the petition for review.

The agency did not abuse its discretion in determining that Castillo’s

conviction was a particularly serious crime that barred him from asylum and

withholding of removal, where the agency considered the correct factors. See

Avendano-Hernandez, 800 F.3d at 1077 (“Our review is limited to ensuring that

the agency relied on the appropriate factors and proper evidence to reach this

conclusion.” (internal quotation marks and citation omitted)); Anaya-Ortiz v.

Holder, 594 F.3d 673, 678 (9th Cir. 2010) (“[A]ll reliable information may be

considered in making a particularly serious crime determination….” (citation

omitted)). Thus, Castillo’s asylum and withholding of removal claims fail.

Substantial evidence supports the agency’s denial of deferral of removal

under CAT because Castillo failed to show it is more likely than not he will be

tortured by or with the consent or acquiescence of the government if returned to

Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

2 20-71083 The BIA did not err in concluding that Castillo is statutorily precluded from

establishing good moral character because he was incarcerated, as a result of a

conviction, for more than 180 days during the relevant period. See 8 U.S.C.

§ 1101(f)(7); Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1233 (9th Cir. 2008)

(concluding that a petitioner was ineligible for cancellation of removal under 8

U.S.C. § 1101(f)(7)). We do not otherwise address Castillo’s contentions as to

whether his conviction constitutes a crime involving moral turpitude because the

agency relied on the length of his incarceration, not the nature of his crime. See

Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing

the decision of the BIA, we consider only the grounds relied upon by that agency.”

(citation and internal quotation marks omitted)). Thus, Castillo’s cancellation of

removal claim fails.

As stated in the court’s June 11, 2020 order, the temporary stay of removal

remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.

3 20-71083